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Friends of Moon Creek v. Diamond Lake Improvement Association, Inc.

United States District Court, E.D. Washington

December 28, 2017

FRIENDS OF MOON CREEK, an unincorporated association, Cheryl and Robert Balentine, George A. and Jane Doe Tyler; Douglas M. and Jane Doe Anderson; Tom and Michele Bowyer Joe F. and Jane Doe Struther; Mark and Jane Doe Moeser; Gaylan and Jane Doe Warren, and Michael and Jane Doe Jeffrey, Plaintiffs,
v.
DIAMOND LAKE IMPROVEMENT, ASSOCIATION, INC., PHIL ANDERSON, Director Department of Fish & Wildlife, SHARON SORBY, Coordinator Pend Oreille County Noxious Weed Control Board, Defendants/Cross-/Counter-Claimants.

          ORDER RE: MOTION TO SET ASIDE PRELIMINARY INJUNCTION

          JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendant Diamond Lake Improvement Association's Motion to Set Aside Preliminary Injunction (ECF No. 244). Response (ECF No. 251) and Reply (ECF No. 255) briefs were filed and the Motion was submitted without oral argument. Movant originally requested oral argument, but withdrew the request in its Reply brief (ECF No. 255, p. 2). Plaintiffs did not request oral argument, and the court deems the Motion appropriate for submission without argument. Local Rule 7.1(h)(3)(B)(iv).

         I. Introduction and Procedural History

         This action was commenced with the filing of a Complaint for Declaratory and Injunctive Relief on November 21, 2013. The parties engaged in extensive motion practice, the Complaint was twice amended, and cross and counter claims were filed. The court heard oral argument on the Motion for Preliminary Injunction and three Motions to Dismiss on January 23, 2014. On February 27, 2014, the court issued an Order denying the Motions to Dismiss. (ECF No. 71). On March 27, 2014, the court issued an Order Granting in Part and Denying in Part (ECF No. 80) Plaintiff's Motion for Preliminary Injunction. The Motion was granted as to only Defendant Diamond Lake Improvement Association (“DLIA”) and prohibited DLIA from “entering on to the real property of Plaintiff's members” and taking action pursuant to “the still active HPA [Hydraulic Project Approval] # 127229-03.” (ECF No. 80, p. 11).

         Thereafter, several more motions were presented to this court, including dispositive motions. On February 5, 2015, the court denied Defendant Anderson's, Director of the Washington Department of Fish & Wildlife, Motion for Summary Judgment and also denied Plaintiffs' Cross-Motion for Summary Judgment. (ECF No. 172). On May 13, 2015, the court denied DLIA's Motion to Dismiss for Lack of Jurisdiction. (ECF No. 205). In a separate Order of May 13, 2015, the court granted in part and denied in part Defendant Sorby's Motion for Summary Judgment and Plaintiffs' Motion for Summary Judgment. (ECF No. 206).

         Shortly thereafter, on May 19, 2015, Plaintiffs filed a “Complaint for Damages and for Injunctive Relief” in the Superior Court of Pend Oreille County. (Filed herein at ECF No. 214). Defendants then filed a Joint Motion to Stay this action. (ECF No. 213). On August 17, 2015, this court issued an Order granting the Motion to Stay. (ECF No. 216). Defendants contended a stay was in the interests of judicial economy because the state Complaint involved additional claims and sought additional relief and therefore the resolution of this federal action would not resolve all claims presented in the state action. In granting the stay, this court observed: “The primary claim at issue in this case is a state law trespass claim against a private homeowner's association, DLIA.” (ECF No. 216, p. 3). The court also recognized the interest in judicial economy of having all claims resolved in the state court. The court further observed much discovery and motion practice had already taken place and “it would appear the parties are in a position to request an expedited trial setting in state court.” (Id.). The parties represented to this court they should be able to conclude discovery in three to four months. Unfortunately, the interests of judicial economy do not appear to have been served in this matter, as the dispute is now over four years old and has yet to proceed to trial.

         A. The State Court Litigation

         The parties have filed several status reports informing the court's understanding of the pendency of the state litigation. The parties scheduled a mediation for February 2016, but the mediation was unsuccessful. (ECF No. 224 & 226). The parties then filed dispositive motions in state court and trial was scheduled for May 2, 2017. (ECF No. 227). The parties report the claims against Defendant Anderson were dismissed on summary judgment, and Defendant Sorby's Motion for Summary Judgment based on qualified immunity was denied. (ECF No. 226 & 235). An order certifying the question of qualified immunity to the Washington Court of Appeals was entered, and the court heard oral argument on September 8, 2017. As a result of the certification, the state trial court struck the May 2, 2017, trial date.

         Defendant DLIA also moved for summary judgment, which was granted in part. DLIA reports it obtained summary judgment on all claims except for a procedural Due Process claim. (ECF No. 244). DLIA obtained a favorable ruling on Plaintiffs' trespass claim. DLIA reports the trial court denied Plaintiffs' Motion to Reconsider and request for certification of discretionary review. Plaintiffs' recent filings confirm the state trial court dismissed Plaintiffs' trespass claims and denied the request for discretionary review. (ECF No. 251, p. 5).

         II. Discussion

         DLIA moves for relief from the Preliminary Injunction entered on March 27, 2014, and argues Plaintiffs can no longer demonstrate a likelihood of success on the merits of their trespass claims, because the claims have been adjudicated against them in state court. Plaintiffs argue the state trial court ruling on the trespass claim was erroneous because “the trial court found that substantial damages are now a necessary element of any simple common law trespass claim.” (ECF No. 251, p. 2).

         A plaintiff seeking preliminary injunction “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 21 (2008). A preliminary injunction is an “extraordinary remedy” not awarded as of right. Id. at 23. In Winter, the Supreme Court rejected the Ninth Circuit's approach which had allowed for an injunction to be entered on the “possibility” of irreparable harm, and stated such harm must be “likely”. As an alternative to demonstrating a likelihood of success on the merits, a movant for a preliminary injunction may establish “serious questions going to the merits, and that the balance of the hardships tips sharply in its favor.” Soda Mountain Wilderness Council v. Bureau of Land Management, 534 Fed.Appx. 680, 683 (9th Cir. 2013); see also Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011). The grant of a preliminary injunction is an exercise of judicial discretion. Sierra On-Line v. Phoenix Software, 739 F.2d 1415, 1421 (9th Cir. 1984). A preliminary injunction “is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Id. at 1422.

         After this court heard the Motion for Preliminary Injunction, it determined Plaintiffs had demonstrated a likelihood of success on the merits of the trespass claim. Plaintiffs had presented Declarations supporting the claim. These Declarations included: Cheryl Ballentine submitting she suffered a headache from the herbicide spray (ECF No. 4); Gaylen Warren stated the airboat driver threatened/attempted to run him over (ECF No. 6); Mark Moeser stated the beaver pond on his property was destroyed by the Defendants' activity which dramatically decreased his property value. (ECF No. 7); and Doug Anderson who operates SpruceWood Farms from his 5 acre parcel and sells plants, trees, and shrubs, which he contended were contaminated by the herbicide application. (ECF No. 8). Additionally, Joe Struthers stated he told DLIA they could not use his property as an access point to the beaver dams and called local police about the trespass, but they refused to act. (ECF No. 10). The court found these Declarations, and others, established a likelihood of success on the merits on the trespass claim.

         This court also noted: “It is well-established that the loss of an interest in real property constitutes an irreparable injury.” Park Village Tenants Ass'n v. MortimerHoward Trust,636 F.3d 1150, 1159 (9th Cir. 2011). This court looked at the balance of the equities and found that although both DLIA and Plaintiffs sought to protect and preserve their respective real property, the equities were in favor of Plaintiffs who alleged their property had been ...


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